Tuesday, April 30, 2013

One strain of work-life-balance thinking seems peculiar to lawyers. It's the idea that lawyers' duty to their clients is absolute and therefore any attempt to "balance" something against this duty is fundamentally illegitimate. According to this view, lawyers should know when they enter the profession that "life" must always take a backseat to "work." Here, for example, is lawyer Scott Greenfield blogging along those lines:

But you have things you like to do, prefer to do, more than practice law? That's cool, but then you've chosen poorly. Law doesn't happen at your convenience. Judges rarely ask whether the brief they demand tomorrow will interfere with a great band playing at a local club. It's not wrong that you want to go, but that you enter into a responsibility thinking your good times trump duty. The client, who sits awake at night believing that there is a professional working diligently to save him from ruin, has things he would rather be doing too.

I agree it's reasonable and correct to expect that lawyers will not let their "good times trump duty." I agree with this because everyone agrees with it. It's banality masquerading as straight talk. No one actually thinks "work-life balance" means asking a judge for an extension on an overnight brief (which, in real life, happens only in the middle of trial) to make time for partying, or even for junior's soccer game.

The work-life balance problem is not a battle between noble lawyers demanding duty to clients and feckless lawyers fighting for their right to party. All lawyers agree that direct conflicts have to be resolved in favor of the client. The disagreement, really, is about how many clients a lawyer should have, and how often those conflicts actually occur.

This is especially true at bigger firms. Associates who demonstrate competence will quickly find themselves in high demand. Partners will find more and more work for them to do. Usually, the culture of the firm will make it hard to turn down work without harming your prospects for partnership—even for associates who are meeting their billable hours requirements. This culture creates many lawyers who really just have too many clients. They aren't working 80 hours a week because it's what's required to professionally and properly represent a client or because it's required to earn a decent living. No, they're working 80 hours a week because it's required to properly represent 20 clients, all at once.

The solution when that happens is pretty obvious: get two lawyers to represent 10 clients each, and they'll each get to work 40 hours a week. The push for work-life balance in law firms is essentially a push for that sane solution. It is a push against a culture that rewards those who hoard work and punishes those who refuse to represent too many clients at once. That's all. I also happen to think that it is a pro-client movement, because overworked lawyers are less likely to produce top-notch work.

Lawyers have a duty to zealously and competently represent their clients, and this sometimes requires sacrifice. But there's no duty to have 20 clients at a time. In fact, there's probably a duty not to have so many clients. When I hear stories about lawyers with two hearings scheduled at the same time—offered as an example of how hard a lawyer has to work—I can't help thinking that one (or both!) of the clients is getting screwed. But I have to agree that it sounds pretty macho.

What's driving this? Simple greed. What really pushes big firms to require their associates to take on too much work, and what pushes solo practitioners to take on too many clients, is just lust for money. A solo practitioner with two or three good clients can make a very good living. In-house lawyers tend to do quite well for themselves representing a single client while punching a clock. But many lawyers want, and feel they deserve, more than a decent living. They want, and feel they deserve, to be rich.

I have a saying: getting rich is the easiest thing in the world—you just have to work all the time. This applies to lawyers as much as anyone else. A good thing about being a lawyer, though, is that if you're smart and organized you can be quite well-off without having to work all the time. In practice, this means making sure you never have too many clients.

Monday, April 29, 2013

The New York Times reports that Justice Breyer had to have a shoulder replaced on Saturday following a bicycle accident. The article notes that in 2011, Justice Breyer broke his collarbone in a bicycle accident and also punctured his lung in a "bicycle crash" in 1993. I wonder if there is a difference between accident and crash. Does crash suggest intent? Maybe Justice Breyer had so many accidents that the writer wanted to use another word for accident just to break the monotony.

Thursday, April 25, 2013

Richard G. Kopf, a United States District Court Judge for the District of Nebraska, has a blog called Hercules and the Umpire in which Judge Kopf posts about the role of the federal trial judge. It is worth a look. I particularly enjoyed this post about Mr. Torvik's fellow Packer fan Paul Clement. The lick-spittle way that Mr. Clement tries to re-ingratiate himself with Justice Sotomayor after insulting her is a nice example of why people dislike lawyers. It is also a reminder that some very accomplished people have the social skills of a fencepost. Anyway read the post and then insert your own joke about Packer fans here.

Wednesday, April 24, 2013

When I worked on an assembly line, one of my coworkers would sometimes say the title to this post. It was kind of ironic because on an assembly line things do not change very much. But he had worked there a long time and could remember when the assembly line was run much differently.

I reflected on this saying when I read the New York Times obituary for Edward de Grazia. As the obituary notes, Mr. de Grazia first became prominent in the 1955 when he sued the United States Postal Service over its seizure of a rare volume of the play Lysistrata. The Postal Service wanted to destroy the book because the play was “obscene, lewd and lascivious" according to then-Postmaster General Arthur Summerfield. The obituary notes that the Postal Service also banned Candide by Voltaire. As a result of Mr. de Garzia's efforts the Postal Service released the seized volume before trial.

Tuesday, April 23, 2013

Back in November we indicated our displeasure with Maryland and Rutgers joining the Big 10. As if to show that there is a silver lining to every cloud, ESPN reports that once Maryland and Rutgers are in the Big 10, the conference will stop referring to its divisions as "Leaders" and "Legends." Instead the Big 10 will have divisions based on geography. Importantly, the proposed Big Ten West will include Wisconsin, Minnesota, and Iowa. Ohio State and Michigan will be in the Big Ten East along with Rutgers and Maryland. The only guaranteed football game between East and West will be Indiana/Purdue.

Monday, April 22, 2013

NBC reports that suspected Boston Marathon bomber Dzhokhar Tsarnaev has started answering questions posed to him by authorities. The article says that a "a special high value detainee interrogation team will question" Mr. Tsarnaev without advising him of his Miranda rights. It is unclear whether this team is already at the hospital or Mr. Tsarnaev is answering questions posed by different authorities. It may be unintentional but the report makes one wonder what is the difference between answering questions and being interrogated.

Friday, April 19, 2013

Parenting is hard work. It is also rewarding. People probably do not give a lot of thought to parenting being hard work because everyone has parents and most people end up having kids. Also, the rewarding parts of parenting often make the hard parts seem worth it.

Tuesday, April 16, 2013

Devoted Reader(s) will recall Beverly Stayart's lawsuits against various companies seeking redress for alleged damage to her online reputation.

We last covered this saga back in February. At that point, dismissals of her latest federal claims were awaiting affirmance at the Seventh Circuit, but her remanded state law claims were still pending in Wisconsin. The state law claims had been brought to my attention by a rude anonymous commenter to the earlier post:

Judge Randa authorized Stayart to go forward with her lawsuit in state court, which is exactly what she did. You apparently make up the "facts" as you go along. Your posts are riddled with lies.

Sunday, April 14, 2013

I am a pretty happy-go-lucky kind of guy, but I do hold a few grudges. “Grudge” might not be quite the right word, but it’s the word I’m using so you’re just going to have to live with it. I’m talking about things that happened to me long enough ago that I should have forgotten about them, yet which still float up into my consciousness and bug me at fairly regular intervals.

Let me give you an example. Like many of my stupid grudges, this one is related to referees. I have a slight scar on the back of my hand from being slapped so hard during a men’s league basketball game that a blood vessel burst (or something—I’m not a doctor). To my ears, the sound of the guy viciously slapping the back of my hand rang out like a gunshot. But no foul was called. Instead, the other team gathered up the loose ball and took it the other way for a layup. Sometimes I see this strange little scar on the back of my hand and I get really angry. Not at the guy who slapped me, but at the referee. How could he not call that? Grrrwaraaah!

That was to give you an example of how trivial these grudges of mine are. Objectively, this is a stupid thing to have any emotion about fifteen years later. But it’s there.

Now here’s one I wanted to write about today, in the hopes that writing about it would expel the lingering bad mojo. This one starts on September 11, 2001. As you may recall, that was the day when the henchmen of Osama Bin Laden, one of history’s biggest assholes, hijacked a bunch of planes and used them to murder thousands of Americans. Those events led more or less directly to two wars and serious restrictions on our civil liberties, particularly at airports.

On January 1, 2005, I was at the airport in Minneapolis dropping off a friend who had come to visit. I was driving my wife’s car because my car became trapped in the garage when one of the garage door’s gigantic, industrial-looking springs snapped for no reason. (This is the kind of stuff that happens during the winter in Minneapolis.) Turns out those ancient garage doors weigh about 7,000 pounds. Luckily, my wife had been out running errands at the time, so we didn't need to call the garage-door fixer on the holiday.

After I dropped my friend off at the airport, I headed home. Just as I was pulling onto the highway, I saw an airport police car’s flashing lights in my rearview mirror. I had been in the process of merging left-to-right onto the highway when I saw this, so I continued that process. As it dawned on me that I was actually being pulled over, I merged over the other two lanes and came to a stop on the right shoulder.

The airport cop eventually approached. She was clearly angry at me. “Why didn't you pull over to the left?” was her important initial query.

“I was taught to pull over to the right,” I responded, truthfully. I was really confused. For a moment I thought that I had been pulled over for not pulling over correctly. The word “kafka” flashed through my thoughts.

“No,” said the airport cop, “you pull over to the nearest shoulder. What you did was unsafe and I could ticket you for it. You could have caused an accident!”

Now I was pissed. So many possible responses occurred to me. This will surprise you, but I am kind of a smart ass. Unfortunately the presence of police officers seems to bring this trait out rather than suppress it. Here’s what I went with:

“Well, I’m sorry, but I don’t have much practice getting pulled over.”

Needless to say, this didn't go over so well. But I was being pulled over for the dastardly deed of driving a car with expired plates. (You’ll recall at this point that this was my wife’s car. We were able to save the marriage.) So I was not in great legal jeopardy.

Here’s what still bugs me about that day. Our nation was fighting wars that day in two different countries. And those wars traced their casus belli to hijacked airplanes. And this was an airport cop, presumably tasked mainly with helping ensure that the events of 9/11 could never recur. But here she was, training her attention on ... the color of the tabs on my (wife’s) car! How could this be justified?

How can this be justified? The question rings out whenever I think of airports, or airplanes, or cars, etc.

I mentioned above that my grudges are over trivial matters. In writing this one out, though, I see now that it truly is a tale of abhorrent injustice. The amazing thing is that I manage to live my life at all, having been so wronged.

Thursday, April 11, 2013

We have previously covered how Iowa Senator Charles Grassley does not think much of the Ninth Circuit (or at least how the circuit schedules its judicial conferences). In the interest of balance we should also point out that Senator Grassley also does not like the D.C. Circuit. On April 10, he announced legislation to remove three judgeships from the circuit (add add one judgeship to the Second and Eleventh Circuit). Senator Grassley, a Republican, announced this legislation as part of his opening remarks on considering the nomination of Sri Srinivasan to the D.C. Circuit. If Mr. Srinivasan is confirmed and Senator Grassley's proposed legislation passes, there will be no vacancies on the D.C. Circuit and President Obama presumably will not have any more appointments to that circuit.

Given how partisan things are in Washington, one should be forgiven for assuming that Senator Grassley is doing this simply to prevent President Obama from packing the courts with judges. However, in Senator Grassley's defense, there are currently 62 vacant federal judgeships for which President Obama has not nominated anyone. If Republicans are out to stop the President from appointing judges, President Obama is giving them a lot of help.

Monday, April 8, 2013

Scott Turow, the famous millionaire lawyer-author, has an op-ed in the New York Times whining about a recent Supreme Court decision that makes his writing hobby arguably somewhat less lucrative at the margins. According to Turow, this is all part of a campaign of "Soviet-style suppression" of literature. (Seriously, you have to read the op-ed all the way to the end—it's a thriller!)

Silly rhetoric aside, he makes a basic error when he says—

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

You may be wondering if you missed that part of Constitutional Law class where we went over the "Instructions to Congress." But of course the Constitution does not "instruct" Congress to do anything, much less pass copyright laws. It merely permits Congress to pass them by granting it the power to do so. Nothing in the constitution requires them. Turow just wishes it did.

One thing writers are good at is twisting words. Lawyers, too. Kudos, Mr. Turow: you win the daily double.

Friday, April 5, 2013

Tim Pernetti, the athletic director at Rutgers, has resigned for failing to fire Mike Rice, the school's basketball coach, after seeing a video of him brutalizing and belittling the team's players during practice.

Any sane person with authority over "Coach" Rice would have fired him on the spot, and Pernetti has deservedly lost his job for his insane failure to do so. But he's going down swinging, and his target is lawyers:

As you know, my first instincts when I saw the videotape of Coach Rice's behavior was to fire him immediately. However, Rutgers decided to follow a process involving university lawyers, human resources professionals, and outside counsel. Following review of the independent investigative report, the consensus was that university policy would not justify dismissal.

I will assume for a moment that this is true, because I have heard stories of similar bureaucratic nonsense—particularly in public universities and other public employment settings. Mike Rice had an employment contract. He could not be fired at will; Rutgers needed good cause to fire him. So lawyers and "human resources professionals" were going to have to review any decision to terminate, and in my experience they follow a rote, unthinking "process." According to Pernetti, they followed that process and prevented him from firing Rice because it was a "first offense" (as he said when the video first became public) and therefore "university policy would not justify dismissal."

I don't know anything about Rutgers's "university policy," but obviously that initial interpretation of the policy was wrong because Mike Rice has now been fired (for the same behavior) and no one at the university is complaining anymore that the conduct doesn't justify dismissal. (I guess they're all too busy running for cover to complain.) So maybe Pernetti has a legitimate beef against those lawyers and HR "professionals." In a remotely just world, they'd all be next in line with their resignation letters.

What's really going on here is that people are way too afraid of legal disputes, even ones that are objectively frivolous. If Mike Rice had been fired back in December, he would have gone to a lawyer, and the lawyer would have sued Rutgers alleging a breach of contract and an unlawful termination. In all likelihood, that lawsuit would have been a loser—objectively frivolous, in my opinion—but you just never know. Even sure-winner lawsuits are expensive, time-consuming, and embarrassing. So we avoid them at all costs.

But, oh the costs! How many kids took a fastball to the face from Mike Rice so that Rutgers could avoid a frivolous lawsuit? How many kids had to stand there while Rice spewed spit and shouted "you are a fucking faggot!" at them so that Rutgers could avoid a lawsuit?

Too many, obviously. This is what happens when cowards and idiots conspire.

In the end, this whole affair goes in as entry number 3,254 on my list of "Reasons I'm Glad I Don't Live in New Jersey."

Speaking of cranking out billable hours, the ABA Law Journal has a post about the unhappiest jobs in America. Associate attorney tops the list beating out customer service representative, clerk, registered nurse, and teacher.

Thursday, April 4, 2013

In a post entitled, "Trojan Horse," Linda Greenhouse blogged the other day about the emergence of a federalism argument against the federal Defense of Marriage Act:

I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?

You might have thought the case, United States v. Windsor, was about equality: marriage equality, in the graceful current locution. The two lower federal courts that ruled in this case on its way to the Supreme Court held that the Constitution’s equal protection guarantee required the federal government to treat married couples, same-sex and opposite-sex, equally for purposes of the more than 1,000 provisions of federal law that relate to marital status.

I thought that’s what the case was about, too. But what reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

Greenhouse argues that striking down DOMA would be a mistake because it would enshrine marriage as a matter of states' rights, and therefore undermine efforts to establish a nationwide right to same-sex marriage:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn't marry whites, whites couldn't marry blacks either.

Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state.

The state of Virginia was quite wrong, of course, but not because it was (or is) untrue that marriage and family law is a matter committed to the states' police power. Rather, as the Loving decision put it, although "marriage is a social relation subject to the State's police power, the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment." In other words, it is in fact easy to reconcile an argument that a federal marriage regulation such as DOMA goes beyond the federal government's enumerated powers with an argument that a state law same-sex marriage ban is void under the federal constitution's various protections of individual and fundamental rights. Federalism is about the limitations on federal power—not the limitlessness of state power. Greenhouse is deeply confused if she thinks Loving was a rejection of core federalism arguments.

What really caught my eye, though, was that Greenhouse centered her piece on an amicus brief filed on behalf of some supposedly "conservative" federalism scholars. The gist of Greenhouse's piece is that these conservatives view the federalism result is the least bad result. Her implicit argument is that these conservatives obviously hate homosexuals and oppose gay marriage, but if DOMA's going down it should at least be on federalism grounds so they can carry on their evil ways under the safe harbor of state law.

That amicus brief was submitted on behalf of just six scholars. One of them is Minnesota's Dale Carpenter. I very much doubt that he thinks the brief is a sneaky way to undermine the rights of homosexuals.

Tuesday, April 2, 2013

Cook County is slowly—very, very slowly—adopting electronic filing. So far it is only in Law Division cases, but according to an email I received today from Clerk of Court Dorothy Brown, the e-filing initiative has now expanded to all kinds of Law Division cases. (For Reader(s)™ not acquainted with the various divisions of the Cook County courts, well, consider yourselves lucky.)

I could say a lot of boring things about e-filing in Cook County. After all, I was a law clerk when the District of Minnesota was implementing e-filing ten years ago. But all I wanted to point out is that the general administrative order attached to Clerk Brown's email gets the whole electronic filing thing off to kind of a rocky start, since it is manually scanned, and the pages were scanned in the wrong order (page 7 is in between pages 3 and 4).

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